Citation Nr: 0636141
Decision Date: 11/20/06 Archive Date: 11/28/06
DOCKET NO. 03-22 787 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran had active military service from May 1967 to
December 1969 and from June 1971 to June 1977 and from
November 1978 to March 1981, with service in the Republic of
Vietnam.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision in October 2002 by the New Orleans,
Louisiana, Regional Office (RO) of the Department of Veterans
Affairs (VA).
A rating decision in November 1993 denied the veteran's claim
of entitlement to service connection for an acquired
psychiatric disorder other than PTSD. The veteran did not
file a timely appeal to the Board of that determination,
which is final. See 38 U.S.C.A. § 7105 (West 2002).
In June 2004, the Board remanded this case for notification
and development action. The case was returned to the Board
in September 2006.
FINDINGS OF FACT
1. The veteran did not engage in combat with the enemy.
2. There is no credible evidence of record that any claimed
in-service stressor occurred, and no claimed in-service
stressor has been verified by official military records.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by service.
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f)
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA has fulfilled the notice and duty to assist provisions of
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Letters sent to
the veteran in July 2002 by the RO and in May 2005 by the VA
Appeals Management Center (AMC) in Washington, DC, satisfied
the statutory and regulatory duty to notify provisions.
There is no indication in the record that additional evidence
material to the issue decided herein which is not part of the
veteran's claims file is available. Therefore, the Board
finds that VA has met the duties to notify and to assist
required by law as to the claim decided herein. In view of
the fact that the veteran and his representative have had
ample opportunity during the more than four years that his
appeal has been pending to submit evidence and argument in
support of his claim, the timing of the VCAA notice provided
to the veteran was in no way prejudicial to him.
In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. § 3.303 (2006).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred. 38 C.F.R. § 3.304(f) (2006).
With regard to the third PTSD criterion, evidence of in-
service stressors, the evidence necessary to establish that
the claimed stressor occurred varies depending on whether it
can be determined that the veteran "engaged in combat with
the enemy." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. §
3.304(d) (2006).
If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 C.F.R. § 3.304(f)(1) (2006).
Service connection presupposes a diagnosis of a current
disease. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).
A diagnosis of a mental disorder shall conform to the
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, of the American Psychiatric Association (DSM-IV).
38 C.F.R. § 4.125 (2005). The DSM-IV diagnostic criteria for
PTSD are:
A. The person has been exposed to a
traumatic event in which both of the
following were present: (1) The person
experienced, witnessed, or was confronted
with an event or events that involved
actual or threatened death or serious
injury, or a threat to the physical
integrity of self or others and (2) the
person's response involved intense fear,
helplessness, or horror.
B. The traumatic event is persistently
re-experienced in one or more of the
following ways: (1) Recurrent and
intrusive distressing recollections of
the event, including images, thoughts, or
perceptions. (2) Recurrent distressing
dreams of the event. (3) Acting or
feeling as if the traumatic event were
recurring (includes a sense of reliving
the experience, illusions,
hallucinations, and dissociative
flashback episodes, including those that
occur on awakening or when intoxicated).
(4) Intense psychological distress at
exposure to internal or external cues
that symbolize or resemble an aspect of
the traumatic event. (5) Physiological
reactivity on exposure to internal or
external cues that symbolize or resemble
an aspect of the traumatic event.
C. Persistent avoidance of stimuli
associated with the trauma and numbing of
general responsiveness (not present
before the trauma), as indicated by three
or more of the following: (1) Efforts to
avoid thoughts, feelings, or
conversations associated with the trauma
(2) efforts to avoid activities, places,
or people that arouse recollections of
the trauma (3) inability to recall an
important aspect of the trauma (4)
markedly diminished interest or
participation in significant activities
(5) feeling of detachment or estrangement
from others (6) restricted range of
affect (for example, unable to have
loving feelings) (7) sense of a
foreshortened future (for example, does
not expect to have a career, marriage,
children, or a normal life span).
D. Persistent symptoms of increased
arousal (not present before the trauma),
as indicated by two or more of the
following: (1) Difficulty falling or
staying asleep (2) irritability or
outbursts of anger (3) difficulty
concentrating (4) hypervigilance (5)
exaggerated startle response.
E. Duration of the disturbance (symptoms
and criteria B, C, and D) is more than
one month.
F. The disturbance causes clinically
significant distress or impairment in
social, occupational, or other important
areas of functioning.
Competent medical evidence means evidence provided by a
person who is qualified by education, training, or experience
to offer medical diagnoses, statements, or opinions.
38 C.F.R. § 3.159(a)(1) (2006).
A diagnosis of PTSD, related to service, based on an
examination which relied upon an unverified history is
inadequate. West v. Brown, 7 Vet. App. 70, 77-8 (1994).
In this case, the appellant's claim of entitlement to service
connection for PTSD must be denied because the requirements
in law for entitlement to service connection for the acquired
psychiatric disorder of PTSD have not been met by competent,
credible evidence.
First, the Board finds that the veteran did not engage in
combat with the enemy in Vietnam. The veteran's Department
of Defense (DD) Form 214, separation document, shows that his
military occupational specialty was cargo handler. He did
not receive any awards or citations for participation in
combat, and he was not wounded by gunfire or by shrapnel
fragments from a shell or mortar. He has not submitted any
evidence in writing, such as a statement by a commanding
officer or a "buddy" statement tending to show
participation in combat on his part. He told a VA examining
physician at a VA psychiatric examination in July 2002 that
in Vietnam he had fired a rocket launcher and a grenade
launcher [at what target, where, and when he did not say] but
such actions on his part are not confirmed by any official
military record or by any credible supporting evidence.
Because the veteran did not engage in combat with the enemy
in Vietnam, credible supporting evidence of a claimed in-
service stressor is required in his case for service
connection for PTSD. The only claimed in-service stressors
which the veteran has claimed to have are incidents of seeing
bodies of dead Vietnamese people on the side of the road and
of seeing body bags which supposedly contained the dead
bodies of American soldiers. Such are the claimed in-service
stressors which the veteran reported to the VA examiner in
July 2002. The veteran has submitted no evidence to VA to
support his statement concerning claimed in-service
stressors. Furthermore, in response to an inquiry from the
AMC, the United States Armed Services Center for Research of
Unit Records reported in May 2006 that official military
records do not document any combat incidents involving the
transportation units of the United States Army to which the
veteran was assigned during his tour of duty in Vietnam.
Due to the lack of any verification of a stressor by official
military records and to the lack of any credible supporting
evidence that a claimed in-service stressor of the veteran
occurred, the appellant's claim of entitlement to service
connection must be denied on that basis (even without
reference to the question of whether any mental health
professional may have rendered a diagnosis of PTSD in his
case.) See 38 C.F.R. § 3.304(f) (2006). In this connection,
it is noted that, as required by a remand order of the
Board's June 2004 remand of his case for further development
of the evidence, the AMC sent to the appellant at his address
of record in May 2005 a stressor questionnaire to provide him
an opportunity to supply additional and detailed information
to VA about any stressful incidents he may allege to have
experienced in Vietnam. The appellant did not return the
stressor questionnaire to VA prior to the certification of
his appeal to the Board in September 2006, and no further
written communications by him to VA are of record.
Although a diagnosis of record which met the requirements of
38 C.F.R.
§§ 3.304(f), 4.125, and DSM-IV would not change the denial of
the claim of entitlement to service connection for PTSD in
this case, it is noted that there is in fact no competent
medical evidence of record at this time of a current
diagnosis of PTSD which conforms to the requirement in
38 C.F.R. § 4.125 (that is, a diagnosis which meets the DSM-
IV criteria) and which is adequate under the holding in West,
supra.
While a hospital summary of the veteran's inpatient treatment
at a VA Medical Center for alcohol dependence in July-August
2000 listed a discharge diagnosis of PTSD (without any
reference in the body of the hospital summary to PTSD other
than a statement by the veteran that he was being seen in a
trauma recovery program), the VA psychiatrist who conducted
the psychiatric examination of the veteran in July 2002 found
that he does not have symptomatology which meets the criteria
for a diagnosis of PTSD, and the examining VA physician
commented that despite "... sufficient time and prompting to
elaborate a history suggestive of PTSD, but nothing -
intrusive thoughts, nightmares, flashbacks, etc. - - was
forthcoming."
The preponderance of the evidence of record is thus against
the appellant's claim for service connection for PTSD, and
entitlement to that benefit is not established. See
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303,
3.304(f) (2006).
ORDER
Entitlement to service connection for PTSD is denied.
____________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs